New Sask. trespassing legislation infringes on treaty rights, says Treaty Land Sharing Network

A group of landholders and Indigenous land users is voicing its opposition to new provincial trespassing legislation in Saskatchewan, saying it infringes on treaty rights. 

The Trespass to Property Amendment Act says that as of Jan. 1, anyone who wants to access a rural landowner's property for "recreational purposes" needs written, electronic or oral consent from the owner.

That affects people who use private rural property for activities like hunting, fishing, hiking or snowmobiling.

The legislation is opposed by the Treaty Land Sharing Network — a group of farmers, ranchers and other landholders who aim to provide a safe space for Indigenous people to use the land for their own practices. The network currently includes more than 4,000 acres (about 1,600 hectares) of land across Saskatchewan.

Sharing land

The group says its aim is to work together with Indigenous peoples to share land in the way that the treaties envisioned — but the new trespassing legislation runs in opposition to that work.

"The Trespass to Property Amendment Act further criminalizes Indigenous people practising their way of life and exercising their treaty and inherent rights by requiring them to obtain permission from each landholder prior to accessing land," the network said in a press release Thursday. 

Without permission from the landowner, people accessing land currently may be subject to penalties including a $5,000 fine. 

Last month, Justice Minister and Attorney General Gordon Wyant said his government "worked hard to balance the rights of landowners in rural Saskatchewan with those of recreational land users."

But the network says "by undermining access to land, the amendment threatens Indigenous food sovereignty, language revitalization, and Indigenous relationships and responsibilities to the land."

The inherent right of Indigenous people to move freely through their territories "was affirmed during the signing of the numbered treaties, and is fundamental to other inherent and treaty rights including hunting, fishing, trapping, gathering, and practising ceremony and culture," the network says.

Joellen Haywahe, a network member from the Carry the Kettle First Nation, told CBC the legislation impedes on her treaty rights.

The new legislation was meant to address criminal concerns, she says, but ignores the traditional needs of Indigenous peoples such as "hunting, fishing, trapping, gathering, and then our own ceremony practices or language training ... taking the kids out onto the land."

"The Treaty Land Sharing Network hopes it helps people see that not everybody wants to go and steal. On our own lands, our medicines are running short ... our game is running short," said Haywahe.

Haywahe said she understand that people want to protect their property from theft. 

"I get everybody is a little bit weary of their property being stolen on because we're the same way out here. We have outfitters coming out here to our own lands and they're going and killing game. Now that's taking away from our food sovereignty too."

Barrier to relationship building

Joel Mowchenko, a network member who farms near Mossbank, southwest of Regina, told CBC that the new legislation is a barrier that stands in the way of farmers like himself building relationships with Indigenous land users. 

"It stands in the way of trust being built between the two groups," said Mowchenko.

He said he hopes that by speaking out against the trespassing legislation, the Treaty Land Sharing Network can help people think about the rights of Indigenous people and learn about treaties. 

But he said the legislation won't stop the work that the Treaty Land Sharing Network does.

"We are going to continue building relationships. We're going to continue exploring ways to share the land. But it makes it harder to build those relationships. I really feel it sends the wrong message. And it's a step in the wrong direction."

Mowchenko said that land sharing is a win-win situation. 

"Some Indigenous land users come and harvest some sage from our native prairie. And then in the process, I've been able to learn about the different types of sage and the different practices of Indigenous peoples," Mowchenko said.

"They've also pointed out different features of the land that we farm and different things that would have been used in different ways by Indigenous people in the history. So we're both coming out ahead in that and it's been a fantastic experience."

Provincial response

The province tells the CBC that the Trespass to Property Amendment Act does not impede on the treaty rights of treaty holders. 

"The recent trespass related amendments were never intended to affect treaty hunting and fishing rights and, indeed, by law cannot affect those rights," said the province in a statement. 

The Legislation Act in Saskatchewan states: "No enactment abrogates or derogates from the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed by Section 35 of the Constitution Act, 1982."

The province said that First Nations hunting and fishing rights are constitutional rights that are set out in the treaties and are protected by the Natural Resources Transfer Agreement of 1930.

"Whether First Nations people have a right of access to any particular lands will continue to be governed by the Treaties, the Natural Resources Transfer Agreement, and the court decisions that have interpreted those rights," said the province.